Page images

now fixed in consequence of magna carta, but “ ubicunque

« fuerimus in Anglia,wheresoever the king shall then be in [ 285 ] England; the king's bench being removable into any part

of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex : and therefore so entitled, because the court now fits in that county; for if it fate in Kent, it would then be a bill of Kent 2. For though, as the justices of this court have, by it's fundamental constitution, power to determine all of fences and trespasses, by the common law and custom of the realm“, it needed no original writ from the crown to give it cognizance of any misdemesnor in the county wherein it resides; yet, as by this court's coming into any county, it immediately superseded the ordinary administration of justice · by the general commissions of eyre and of oyer and terminer,

a process of it's own became necessary within the county where it fate, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex , (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court o) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil causes, as was formerly observed; since, when once the defendant is taken into custody of the marshal, or prison-keeper of this court, for the supposed trespass, he, being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the marshal's prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal, as will give the court a jurisdiction to proceed. And, upon these accounts, in the bill or process a complaint of trespass is always suggested, whatever else [ 286 ] may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county ; but, if he returns " non eft inventus," then there ifsues out a writ of latitat f, to the sheriff of another county, as Berks : which is similar to the teftatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant « latitat et discurrit,lurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return. But, as in the common pleas the teftatum capias may be sued out upon only a supposed, and not an actual, preceding capias ; so in the king's bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king's bench, as the teftatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common copias fuffices ; so in the king's bench likewise, if he lives in Middlesex, the process must Atill be by bill of Middlesex only.

* Thus, when the court sate at Ox. ford, by reason of the plague, Mich. 1665. the process was by bill of Oxfordshire. Trye's Jus Filizar, 101.

i Bro. Abr. 1. cyer and determiner. 8.

b Bro. Abr. 1. jurifdi&tior, 66. 3 Inft. 27.

c Append. No III. $ 3.
a Trye's Jus Filizar. 98.

In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which write the plaintiff is alleged to be the king's farmer or debtor, and that the defendant hath done him the injury complained of; quo minus fufficiens exisfit, by which he is the less able, to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.

Thus differently do the three courts set out at first, in the commencement of a syit, in order to entitle the two courts

•4 Inft. 72, f Append. No III. $ 3. & Ibid. 4.

of king's bench and exchequer to hold plea in causes between subject and subject, which by the original constitution of Weftminster-hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them,

[ 287 ) If the sheriff has found the defendant upon any of the

former writs, the capias latitat, Sc. he was antiently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had thewn a contempt of the court, and was no, longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed : and therefore in common cases by the gradual indulgence of the courts (at length authorized by statute 12 Geo. I. c. 29. which was amended by 5 Geo. II, c. 27. made perpetual by 21 Geo. II. c. 3. and extended to all inferior courts by 19 Geo. III. c. 70.) the sheriff or proper officer can now only personally serve the defendant with thc copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action ; which in effect reduces it to a mere summons, And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plain. tiff's prosecution, John Doe and Richard Roe. Or, if the de. fendant does not appear upon the return of the writ, or within four (or in some cases, eight) days after (1), the plaintiff may

(1) In all cases where the defendant is served with a copy of the process, he has eight days to file common bail in the king's bench, or to enter a common appearance in the common pleas, exclusive of the return day; and if the last of the eight day's is a sunday, he has all the next day. Cromp. Prac. 48, 1 Burr. 56.


enter an appearance for him, as if he had really appeared; and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it himself.

But if the plaintiff will make affidavit, or affert upon oath, that the cause of action amounts to ten pounds or upwards(2), then he may arrest the defendant, and make him put in substantial fureties for his appearance, called special bail. In order to which, it is required by statute 13 Car. II. st. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process: else no security can be taken in a greater fum than 40 l. This statute (without any such intention in the makers) had like to have ousted the king's bench of all it's jurisdiction over civil injuries without force ; for, as [ 288 ] the bill of Middlesex was framed only for actions of trespass, a defendant could not be arreited and held to bail thereupon for breaches of civil contracts. But to remedy this incona venience, the officers of the king's bench devised a mcthod of adding what is called a clause of ac etiam to the usual complaint of trespass: the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt f: the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. In imitation of which, lord chief justice North a few years afterwards, in order to save the suitors of his court the trouble and expense of suing out special originals, directed that in the common pleas, besides the usual

? Trye's Jus Filizar. 102. Append. No III. $ 3.

(2) This affidavit must be certain and positive ; for an affida. vit made upon belief, or with a reference to something else, as where the plaintiff swears the defendant is indebted to him in ten pounds or upwards, as appears by his books, or by a bill deliyered, will not be sufficient, unless the plaintiff is an executor, administrator, or assignee ; for then, from the nature of his situation, he cannot swear more positively than from belief, or from a reference to the accounts of others. Sellon's Prac. 112.


complaint of breaking thc plaintiff's close, a clause of ac etiam might be also added to the writ of capias, containing the true cause of action; as, “ that the said Charles the de“ fendant may answer to the plaintiff of a plea of trespass in “ breaking his close: and also, ac etiam, may answer him, « according to the custom of the court, in a certain plea of “ trespass upon the case, upon promises, to the value of “twenty pounds, & 08.” The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon.

An arrest must be by corporal seising or touching the defendant's body; after which the bailiff may justify breaking open the house in which he is, to take him: otherwise he has no such power ; but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence (3). Which principle is carried so far in the civil law, that for the most part not so much as a common citation

8 Lily pra&t. Reg. 1. ac etiam. North's life of lord Guilford. 99.

(3) A bailiff before he has made the arrest cannot break open an outer door of a house ; but if he enters the outer door peaceably, he may then break open the inner door, though it be the apartment of a lodger, if the owner himself occupies part of the house. Cowp. 1. But if the whole house be let in lodgings, as each lodging is then considered a dwelling house, in which burglary may be stated to have been committed, so in that case I conceive the door of each apartment would be considered an outer door, which could not be legally broken open to execute an arrest. Cowp. 2. It is not necessary that the arrest should be made by the hand of the bailiff, nor that he should be a ctually in fight; yet where an arrest is made by his assistant or follower, the bailiff ought to be so near as to be considered as acting in it. Corp. 65.


« PreviousContinue »